Just When You Thought It Was Safe To Go Near The Wires: Washington Supreme Court Accepts Review of EMF Damages Case

Many in the electric utility industry thought that the threat of liability arising from human exposure to Electromagnetic Fields (“EMF”) had been put to rest years ago. The Washington Supreme Court, however, recently accepted review of a case that will decide whether lawsuits claiming damages from EMF exposure will be entertained in Washington courts despite the nearly unanimous rejection of such suits in other states. Because EMF is associated with almost all electric equipment, the case has potentially enormous consequences for Washington’s electric utilities, as well as other industries that use electric or electronic equipment in almost any form, ranging from housing to telecommunications. Because the Court has accepted review of the plaintiffs’ claims of inverse condemnation based on EMF exposure on their properties, the case also has serious implications for cities, counties, and other government agencies that may become involved land use decisions allowing the construction of substations, distribution and transmission lines, and other electric utility infrastructure.
The case arises from construction of a new substation by Puget Sound Energy (“PSE”) in a residential neighborhood of Kirkland, Washington. PSE requested, and Kirkland granted, relatively modest zoning variances to allow construction of the substation. The Plaintiffs, owners of property adjacent to the substation, then brought suit against PSE under theories of trespass and nuisance, claiming that a “reasonable fear” of EMF radiation from the substation caused reduction of their property values. Plaintiffs also sued the City of Kirkland claiming that Kirkland’s approval of the zoning variances reduced their property value and therefore amounted to an inverse condemnation of their property.

PSE moved for summary judgment, arguing that the plaintiffs’ expert evidence did not meet the standards for scientific evidence set forth by the U.S. Supreme Court in Frye and parallel cases decided by the Washington Supreme Court. The lower court granted summary judgment, concluding that the plaintiffs’ scientific expert presented views that were well outside the scientific mainstream. This view is supported by a growing body of scientific evidence, compiled by, for example, the World Health Organization, finding no basis for concluding that exposure to EMF is harmful to human health, especially at the levels created by the PSE substation. The lower court also granted summary judgment to Kirkland on the ground that the plaintiffs’ inverse condemnation claim is a form of land use action that must be brought within 21 days of the City’s final decision granting the zoning variance to PSE, a deadline missed by plaintiffs.
Plaintiffs appealed the dismissal of their claims. In an extremely unusual procedural move, Division I of the Washington Court of Appeals then certified the case directly to the Supreme Court without reaching a decision of its own. The Washington Supreme Court recently accepted review of the case for its upcoming Fall 2012 term. The case has tentatively been scheduled for argument on October 18, 2012.